Burton v. Phillips

ANDERSON, J. Counsel for appellant insist in their brief that the court erred in permitting the witness Hinsley to testify as to serving the written demand of the plaintiffs for a satisfaction of the mortgage and the entry of partial payment upon the defendant, because there was no proof that he was acting as agent of the plaintiffs when he served the demand on the defendant. The demand was in writing, signed by each of the plain tiffs. It was given him by one of the plaintiffs, and he returned the original after giving the copies to defendant. This was at least prima facie evidence that he was giving her the writing for the plaintiffs, and the trial court did not err in not excluding this evidence upon the ground insisted upon by counsel. The case of Lamar v. Smith, 129 Ala. 418, 29 South. 576, has no bearing upon this case. There the demand was made, not by the mortgagor, but by the attorney, and he had to show authority to make it. Here the demand was signed and made by each of the mortgagors, and Hinsley was used as a' mere medium to give the same to the defendant. The court did not err in permitting one of the plaintiffs to testify that he gave W. P. Wright money to pay upon the mortgage debt, as he said he went to defendant’s house with said Wright and saw him go in the house and come out with one of the notes. This was clearly evidence for the jury as to whether or not one of the notes had been paid with plaintiff’s money. The trial court erred in not letting the witness Busby testify as to a conversation he had with ‘Squire Wright with reference to the mortgage debt due the defendant. He signed the note with the plaintiffs, and was liable [667] for the debt, and his declarations, tending to show that the notes had not been paid, were against his interest.— Hart v. Kendall, 82 Ala. 147, 3 South. 41; Humes v. O’Bryan, 74 Ala. 64; Camp v. Dill, 27 Ala. 553. The defendant’s contention was that the money that she may have gotten from ‘Squire Wright before his death was not upon the mortgage indebtedness, but went to pay an individual indebtedness from him to her, and she was permitted to prove that he was indebted to her; and the plaintiffs had the right to controvert this fact, and to introduce the entries in ‘Squire Wright’s books on the subject, as he was dead and they were shown to be in his handwriting. — McDonald v. Carnes, 90 Ala. 147, 7 South. 919, and cases cited. For the error above suggested, the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Denson and McClellan, JJ., concur.